How will the Supreme Court tackle health care?

Dahlia Lithwick Jan 3, 2012

Kai Ryssdal: This being just Day Three of 2012, you’re going to be pretty safe should you venture a guess as to what’s going to merit news coverage this year, seeing as how nothing’s actually happened yet.

We’re going to pick up today with our commentary series “What Now?” — thoughts about what is going to be in the headlines the next 12 months. Here’s a hint for today’s entry: Individual mandate, the requirement that everyone have health insurance. Commentator Dahlia Lithwick explains.

Dahlia Lithwick: For three days this March, the Supreme Court will hear arguments in a case that will be the Constitutional equivalent of the Super Bowl, the Oscars and the presidential election rolled into one. They’ve set aside five and a half hours to hear challenges to President Obama’s health care law. The case promises lots of heavy betting, mild bruising, secrecy, tears and a rare foray into election-year politics. The justices generally try to stay away from this sort of clear and present drama, especially after Bush v. Gore. But timing made it impossible to dodge this.

Over the course of three days, the justices will evaluate four separate questions: Is the “individual mandate” an unconstitutional encroachment on individual liberty; if the individual mandate falls, does the entire law collapse; did Congress violate states’ rights when by expanding the Medicaid program; and, can a 19th century tax law make the whole dispute go away for a few years?

Appeals of these and other issues have meandered up through the federal courts, and appeals courts have split across ideological lines. The court may find a way to put off a final decision for a few years. They could strike down the individual mandate but uphold the law, to uphold the whole thing or gut it all. Any route they choose will shape the presidential election, and any decision they make will put the court itself at the heart of the raging debate we are having about how America should govern itself.

Don’t be so quick to believe the wiseacres who tell you the health care case is guaranteed to come down 5-4, conservative/liberal, in the manner of a Bush v. Gore 2.0. Some of the court’s conservatives have embraced an expansive view of congressional power; Tea Party concerns about “freedom” are not of paramount importance at the court; and decades of precedent are hard to ignore.

Two promises are all I can offer: Nobody will be recusing themselves and you won’t see one moment of it on TV.

Ryssdal: Dahlia Lithwick is the senior legal correspondent at Slate. Send us your thoughts on the year to come.

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